Home > San Jose Mercury News: California vaccine legislation spurs legal debate over right to education

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By: Tracy Seipel

April 18, 2015

SACRAMENTO -- California's Constitution spells out the right to a free public education, and lawmakers have fortified that guarantee over the years by safeguarding students against discrimination and inequality in the classroom.

But now a debate over that protected access to an education has surfaced in the most contentious legislative battle in Sacramento this year: Does one student's right to an education trump another student's right to stay healthy?

That question looms over Senate Bill 277, a controversial proposal that would tighten the requirements that all children be vaccinated to attend a California school.

A vocal group of parents fighting the bill insists the vaccination mandate would deprive their kids of their constitutional right to an education, and that argument has suddenly become a threat to the legislation. But legal experts -- including a lawyer who participated in a landmark education rights case -- say both state and federal law allow government to protect the health of the community, first and foremost.

"Schools have to be safe, and the state has the power to regulate the schools for safety," said Dorit Reiss, a professor and vaccine law expert at UC Hastings College of the Law in San Francisco.

Following a measles outbreak that began in mid-December at Disneyland -- which state public health officials attribute in large part to unvaccinated individuals -- state Sen. Richard Pan and two other lawmakers introduced SB 277 in February.

If passed, the bill would no longer allow parents to obtain personal belief exemptions, including religious exemptions, and send their children to school without immunizations. Only medical exemptions would be granted, as is the case in Mississippi and West Virginia. At least 13,000 kindergartners in California this school year had personal belief exemptions. The bill would exempt home-school students from vaccinations.

Should SB 277 pass, the only option for unvaccinated children would be home schooling -- and some lawmakers in the Senate Education Committee are questioning whether such a limited option is fair.

Many parents who oppose the bill have showed up in Sacramento to argue home schooling would present an undue burden because they aren't in a position to leave their jobs and teach their children at home.

Palo Alto parent Christina Hildebrand, mother of two unvaccinated children who attend private school, is among Pan's harshest critics.

"We would like him to remember that education is a right -- not a privilege -- when he excludes our children from public schools because they are not fully up to date on every dose of every vaccination in the bill."

On Friday, state public health officials announced that the measles outbreak -- that infected 131 people in California and 16 others elsewhere -- was officially over.

But during a conference call with reporters, state epidemiologist Dr. Gil Chavez repeatedly emphasized that the outbreak would not have happened if more people in California had been vaccinated.

While at least 92 percent of California kindergartners are vaccinated, Chavez said, that number drops to 50 percent in some schools and even lower in pockets around the state where many parents have obtained personal belief exemptions. The low vaccine rates eliminate what officials call "herd immunity," increasing the risk that infectious diseases such as measles and whooping cough can spread.

That poses a risk to schoolchildren whose weakened immune systems prevent them from being vaccinated. Babies who are too young to be vaccinated and pregnant women also are at greater risk.

Last week, 6-year-old Rhett Krawitt, of Corte Madera, who is recovering from leukemia and was immune-compromised at the time of the measles outbreak, urged the Senate Education Committee to pass SB 277, after thanking them "for making sure kids like me don't get sick at school" from unvaccinated schoolmates.

But his father, Carl Krawitt, remains "appalled that the rhetoric" from the bill's opponents seems to be overpowering the arguments of the medical community and school boards throughout California that are supporting the bill.

Among other things that mystify Krawitt: "Why would home-schoolers be against this bill if this bill promotes their cause because they get more people to home school?"

Bill Koski, a Stanford University professor of law and education, said the bill raises "complicated tensions between a parents' right to raise their child as they see fit and a child's right to education, and the state's right to regulate public health."

He believes any legal challenge to the proposed legislation would face "a lot of hurdles." But he said the "unconditional right to go to school is not unconditional." One extreme example, Koski cited: Even if a student with a "concealed-carry" permit had a right to carry a gun, "the school could reasonably say: We don't allow guns on campus."

Reiss, at UC Hastings, emphasized that SB 277 is not "forcing" parents to do anything. Rather, she said, parents have a choice -- to vaccinate or not -- and decide the consequences for their children's education.

"You make your choice and pay the consequences," she said. "It does not mean you make your choice and someone else has to pay."

At UC Berkeley, law professor Stephen Sugarman, a nationally renowned expert in education rights, said he does not believe SB 277 violates parents' or students' constitutional rights.

"We interfere with people's liberty in the name of public health in many ways," said Sugarman, who argued in the 1971 state Supreme Court case Serrano v. Priest about disparities in school funding in California. He pointed out that individuals with tuberculosis can be quarantined, while chemicals are added into the public water supply to fight tooth decay.

He said if objecting parents "lose this battle in Sacramento, I don't think that the courts are the right place to provide them with relief in this instance."

Ultimately, nine members of the Senate Education Committee must decide whether the unvaccinated children's rights to an education outweigh the public health concerns of schooling those children. Last week, under a barrage of questions, Pan agreed to postpone a vote on the bill when it was clear he didn't have the support needed to pass the legislation onto the Senate Judiciary Committee. It must also pass through the Assembly and then receive Gov. Jerry Brown's signature before it becomes a law.

Pan, who is also a pediatrician, said he is working on addressing the education committee's concerns before the bill is voted on Wednesday, but he wouldn't provide details.

"I believe we can get to a place where we can protect every child," Pan said, "and we can assure every child an education."